Protecting Georgia’s Coastal Marshes – A Legislative Success Story

Posted by Jeffrey Sewell281.20sc on May 01, 2015

By Representative Jeff Jones

One year-ago – Earth Day, April 22, 2014 – the Director of the Georgia Environmental Protection Division (EPD) of the Department of Natural Resources, announced that the State of Georgia would no longer enforce a long-standing provision requiring a 25-foot marsh protection buffer. (View EPD Director Jud Turner’s letter) The marsh buffer stipulation, which appears in the Erosion and Sedimentation Act, requires marsh front developments - whether large or small, commercial or residential - to observe a 25-foot buffer. The buffer’s purpose is to protect salt marshes from upland soil erosion, and runoff from construction and from commercial or residential marsh-side developments.

As a resident of coastal Georgia serving my first term in the Georgia House of Representatives, I was extremely concerned about the prospect that our coastal marshes were unprotected by a buffer and the possibility that our environmentally and economically important marsh buffers would continue unprotected.

Throughout the end of 2014, I continued to read, listen and learn more about coastal marsh protection issues. In the process, coastal residents and legislators voiced strong concerns and objections to EPD's decision to cease enforcement of the buffer provision. The EPD Director justified the decision to stop buffer enforcement because he said that language in the Erosion and Sedimentation Act was confusing, EPD's enforcement was inconsistent across the state and that the 2004 letter from ex-EPD Director Carol Couch, which had been acceptable for over 10 years was not enforceable as law (View Carol Couch’s 2004 memorandum). For example, for more than a decade, the agency had been enforcing the buffer on coastal salt marsh, but not on freshwater wetlands, which have their own, separate complexities, issues and challenges. Upon reading the language in the Erosion and Sedimentation Act, I began to better understand the confusion about the Act's applicability to coastal salt marsh and became convinced that we needed a legislative remedy.

In December, 2014, I learned that the EPD had worked with conservation and development interests to draft language for a new piece of legislation that would restore the buffer for coastal salt marsh. The language would insert a separate buffer provision into the E&S Act that would apply only to coastal salt marshes and re-establish EPD's decade-long history of salt marsh buffer enforcement. This seemed like a fair and responsible solution and also seemed to have the support of most of the coastal caucus – Senators and Representatives who districts are along Georgia’s coastal region.

When the session began in January, I learned that Senator Ben Watson, also a coastal delegation member, planned to file the bill, which later became known as “SB101, the Marsh Buffer bill," The bill Senator Watson intended to introduce contained language different from the version worked out with other legislators and conservationists and that also had EPD support. Later in January, 2015, I attended a meeting, hosted by Senator Watson and attended by five of my coastal legislative colleagues and representatives from the conservation and development communities. At the meeting, the one thing upon which everyone agreed was that priority must be given to re-establishing a 25-foot salt marsh buffer before day 40 of the 2015 session.

Senator Watson's “Marsh Bill," as introduced, included a large number of exemptions and exceptions — significantly more than originally contained in the Erosion and Sedimentation Act. Immediately, coastal residents and conservationists criticized the number and type of exemptions. For example, one of the provisions the bill exempted “maintenance projects," but did not define maintenance. Some coastal residents were concerned that - without a clear definition - maintenance could be defined as a resurfacing and expansion of a parking lot as an example. Members of the Senate Natural Resources Committee addressed these concerns by adopting a clear and reasonable definition of maintenance, which was added to the bill draft and was then passed by the Senate.

When the bill was moved to the House of Representative, it was assigned to the Environmental Quality sub-committee of the Natural Resources Committee. Nearly a dozen coastal friends from around the state and residents, as well as development supporters, traveled to Atlanta to testify before the sub-committee. Most of those testifying advocated for a reduction in the number of exemptions. It was clear to all present during the hearing that there were many people who were unsatisfied by the proposed language. After the testimony, the Chairman of the sub-committee, Representative Buddy Hardin, told the sub-committee members, and others present, that he was willing to accept substitute language in the form of amendments 1 or a substitute 2 bill. The willingness by Representative Hardin to accept changes in the sub-committee is an important procedural step consistent with how the committee process works in the Georgia General Assembly. All the hearings and the majority of the legislative debate on bills occurs at the subcommittee and committee level as bills make their way through the legislative process.

Members of the coastal delegation and other interested legislators met again a few days later to discuss options for the controversial language. Once again, in that meeting, all agreed we wanted to make sure that our salt marsh would receive the benefit of a legally defined 25-foot buffer this legislative session, and not wait another year. Additionally, we debated about the degree to which members of the Senate would accept changes to the original language. Representative Jesse Petrea stated eloquently that he would “support a bill that was as protective as we could get approved by the Senate.” Unfortunately, at that meeting, there was disagreement about what changes could be made and still have the bill be approved by the Senate; my colleagues and I did not reach a consensus on ways to improve SB101 because of our fear of Senate rejection. We were at a frustrating crossroad.

The next day, due to a lack of consensus for language changes, the bill passed - unchanged - out of the House Natural Resources sub-committee. This despite major concerns expressed by legislators on the committee representing areas from all across Georgia. (Ed Note: I serve on the full Natural Resources Committee but not on the sub-committee that heard testimony on the bill. As such, I had no authority to submit amendments or changes, or to ask questions.) A few days later, the bill was presented to the full House Natural Resources Committee by its sponsor Sen. Ben Watson. Again, as in the sub-committee hearing, many concerns about the bill were expressed by a number of committee legislators. According to committee rules, amendments were not allowed but as explained earlier in this article, the sub-committee chairman announced that he was more than willing to hear amendments, but none were presented by sub-committee members.

After hearing the testimony of witnesses and questioning by committee members, the Marsh Buffer Bill was voted out of the committee. I also voted in favor of passing the bill out of the committee because I was reluctantly convinced, due in great part to passionate testimony from the bill's sponsor, that changes to the bill would surely cause its defeat in the Senate. At this point, I admit to becoming frustrated and deeply concerned.

It seemed were going in circles. Do we risk having no buffer if we pushed too hard for changes? Or, do we except a bill that had big loopholes? I agreed fully with members of the coastal delegation of the need to restore our 25-foot buffer. I also agreed we wanted our work this year to result in something passable by Senate. Otherwise, our work would be in vain, and our coastal salt marsh would go 12 more months without the protection of law.

The reality was that people on the coast were dissatisfied with the number and scope of the exemptions included in SB101. The exemptions in the bill are listed so as to clearly state who does NOT need to comply with the 25-foot buffer requirement. Many said SB101 exempted so much there would hardly be a buffer anywhere, that there would be a buffer in name only. One member of the legislature even called it a "bluffer bill."

At this point, after much sole-searching and considerable discussion with other like-minded Representatives, both Republican and Democrat, I concluded the best legislative response was to submit a “substitute” bill that included language many of us believed would greatly improve the bill. Over the next several days, through the course of negotiations with House leaders, the “substitute” bill evolved into two separate “amendments." As the legislative process unfolded, I became increasingly convinced that including these amendments would address what many of us believed were the most egregious holes in the bill. I finally began to feel a sense of confidence that we really could achieve success, that we could improve on this important piece of legislation and still get it passed by the Senate.

Before I proceed, let me explain a little about what it’s like to be a freshman Representative. Being a freshman requires having a somewhat humble attitude and demeanor. By and large, most of the more seasoned Representatives have no clue whether or not you can even tie your shoes, let alone sponsor legislation, substitute bills or amendments to a major, impactful bill such as the Marsh Buffer bill. Accomplishing things in the General Assembly requires members to build relationships, garner support from among other members for your idea or position, and earning the respect of House Leadership and fellow legislators. Sometimes making something happen requires patience with a polite, respectful attitude. Other times, what is called for is a respectful but persistently stubborn attitude combined with a sense of urgency if you believe in your position or bill and want to see it come to fruition. For me, changing and improving the Marsh Buffer Bill became a matter of significant priority and immediate importance. It was unacceptable to me to not at least try to improve the Marsh Buffer bill. So, freshman or not, I plunged ahead!

The first amendment I proposed moved language in the Senate passed version of the bill regarding US Army Corp of Engineers permits for marsh buffer exceptions under Section 404 of the Federal Water Pollution Control Act of 1972 to a completely different section of SB101. This seemingly simple change was very significant if we could get it included in the bill.

As passed by the Senate, the Section 404 Army Corps of Engineers language said that EPD - and the citizens of Georgia - must accept exemptions spelled out in federally permitted marsh buffer projects, regardless of the size, scope, scale or impact of those projects on coastal saltwater marshes. In my mind, deferring to the federal government was completely unacceptable!

Doing so completely changed who has authority over marsh buffer exceptions and returned that authority to the DNR. This seemingly minor change now requires that EPD must review requests for buffer variance projects even if those projects have a federal permit, and removes that authority from the hands of the Federal government.

There was another section of SB101 that I and others had serious concerns with regarding an effective date for a grand-fathering clause. As passed by the Senate, SB101 exempted from the 25-foot buffer requirement any time there is a shoreline stabilization project – such as a bulkhead, retaining wall, rip-rap or other forms of shore stabilization. To my thinking, this was unacceptable because a bulkhead is not a buffer – it is a stabilization structure. A retaining wall does not supplant a buffer.

Unfortunately – and as is the nature of political negotiations - I had to agree to drop the second amendment to get House leadership to allow the important 404 amendment to be considered and voted on before the full House. In doing so, we received a firm commitment from DNR that they will deal with the issues addressed by the second buffer bill amendment when DNR completes the rules making process that SB101 requires. I publicly re-stated DNR’s promise regarding the rules making process in my March 26, 2015 speech before the full House when I spoke in support of the bill. DNR is required to finalize these rules by December 31, 2015. Here is a link to the text and video of my speech to the full House of Representatives: (View Full-Text of Speech).

As I mentioned, to get a bill or amendment passed in the House of Representatives requires building the support of fellow legislators. With the help of Rep. Jason Spencer, D180-Woodbine/Camden, I came up with the idea of placing a hand-out on the desk of every Representative using Tom Barton of the Savannah Morning News excellent March 18, 2015 editorial about the problems with the Marsh Buffer Bill. I added the headline: “Want the Feds telling Georgia how to manage our Marsh Buffers? If NO, support SB101 Amendment LC 40 0902ERS” (The LC number is the internal House 404 amendment number). Here is a link to the handout that I thought you might find interesting (View Handout).

With the addition of the 404 amendment and with the strong commitment made by DNR Commissioner Mark Williams, I was satisfied and put my full support behind passage of SB101.

The Marsh Buffer Bill, SB101, passed the House on March 26, 2015 with a unanimous vote! When the bill returned to the Senate for a vote (required because the House changed the bill), the Senate had only two NO votes – a better vote than their original vote passing the bill. It turns out that our fears of a Senate rejection of a changed bill were unfounded.

On April 17, 2015, while attending a joint committee hearing of the Coastal Marshlands and Shore Protection Committees, I personally spoke with DNR Commissioner Mark Williams. Commissioner Williams gave me his promise that I will be allowed to be involved in the Marsh Buffer Bill rules making process. It is my intention to participate to help make sure the Marsh Buffer Bill rules match the bill's intention.

I'm proud of the work we did to restore the coastal buffer. It wasn't easy. We didn't all agree all the time. However, the legislative process worked. People on the coast made their voices heard, and the Legislature listened. As a result, we passed a great buffer bill, and our coastal salt marsh is protected once again. Because of the clarity and specificity we added to the Erosion and Sedimentation Act, I daresay it now has the best protection it has ever had.